Entering and searching premises; seizure

(1) The supervisory authority is authorised 1. to carry out examinations of the business operations in the business premises of insurance undertakings, even without a particular occasion; in doing so, within the framework of group supervision under Part 5, it may also carry out examinations of the information under section 305(1), point 2, and section 284, at the insurance undertaking subject to group supervision, at related undertakings of this insurance undertaking, at parent undertakings of this insurance undertaking, and at related undertakings of a parent undertaking of this insurance undertaking; 2. also to carry out examinations by participating in an examination arranged by the insurance undertaking under section 341k of the Commercial Code and itself making the findings it considers necessary; this does not apply to insurance undertakings recognised as smaller associations; 3. to involve, in examinations it carries out under points 1 and 2, persons who may be appointed as statutory auditors under section 341k in conjunction with section 319 of the Commercial Code, or to engage these persons to carry out examinations under points 1 and 2; the provision of section 323 of the Commercial Code for statutory auditors applies correspondingly to these persons; 4. to send representatives to meetings of the supervisory board and to general meetings or of the highest representative body, who must be given the floor on request; and 5. to require the convening of the meetings named in point 4, and the announcement of items for resolution. In the cases of a virtual general meeting under section 118a of the Stock Corporation Act, and a virtual highest representative body, the representatives must be connected to the meeting by video communication, and must be given the floor via video communication on request. Statements submitted under section 130a(1) and (2) of the Stock Corporation Act, questions submitted under section 131(1a) and (1b) of the Stock Corporation Act, and the answers given to these questions before the meeting, must be made accessible to the representatives. The representatives may, instead of connecting by video communication, attend at the location of the general meeting, where they consider this necessary. With a view to aligning sound supervisory practices, the staff of the European Insurance and Occupational Pensions Authority have, under Article 21(1) of Regulation (EU) No 1094/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Insurance and Occupational Pensions Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/79/EC (OJ L 331, 15.12.2010, p. 48), the right to participate in examinations by the colleges of supervisors named in Directive 2009/138/EC in the business premises of insurance undertakings, carried out jointly by the supervisory authority and at least one competent authority of another member or contracting state.
(2) The supervisory authority also has the rights under subsection (1), first sentence, points 1 and 3, against 1. persons and undertakings that broker, or have brokered, insurance contracts for an insurance undertaking as an insurance agent or insurance broker, 2. persons and undertakings to whom an insurance undertaking has outsourced functions or activities, 3. persons and undertakings that have notified an intention to acquire a participation under section 17(1), point 1, or that are named as holders of significant participations within an application for authorisation under section 9, 4. the holders of a significant participation in an insurance undertaking, and the undertakings controlled by them, 5. persons and undertakings for whom facts justify the assumption that they are persons or undertakings within the meaning of point 4, and 6. persons and undertakings related, under section 15 of the Stock Corporation Act, to a person or undertaking within the meaning of points 3 to 5. For the cases under the first sentence, point 1, this applies only insofar as it is significant for assessing the business operations and financial position of the insurance undertaking, or an insurance undertaking's fulfilment of the obligations under sections 53 to 56 or the provisions of the Money Laundering Act within the meaning of section 52. The supervisory authority may take measures under subsection (1), first sentence, points 4 and 5, against the persons and undertakings named in the first sentence, points 3 to 6, where there are indications of a ground for prohibition under section 18(1), points 1 to 6, and (2).
(3) Where the supervisory authority, in exercising financial supervision, intends to carry out examinations, through its own staff or through agents, in the business premises of a branch under section 58, of a branch of a reinsurance undertaking, or in the business premises of a service provider to whom an insurance undertaking has outsourced activities, it informs the supervisory authority of the other member or contracting state of this. Where the supervisory authority is prohibited from exercising its right to carry out these on-site examinations, or it is actually unable to participate in the examination, it may refer the matter to the European Insurance and Occupational Pensions Authority under Article 19 of Regulation (EU) No 1094/2010, and request its assistance. The supervisory authority may delegate the examination of a service provider to the supervisory authority of the member or contracting state in which the service provider is established.
(4) The employees of the supervisory authority, and the persons involved or engaged under subsection (1), first sentence, point 3, may, for examinations under subsection (1), first sentence, points 1 and 2, in the cases of subsection (1), first sentence, point 4, enter and inspect the business premises of the undertaking examined within the usual operating and business hours. To avert imminent dangers to public security and order, they may also enter and inspect these premises outside the usual operating and business hours; under this condition, they may also enter and inspect premises that also serve as a dwelling.
(5) The employees of the Federal Institute may search the premises of the undertakings obliged to provide information and submit documents under section 305(1), and of their governing body members, including after they have left, where facts justify the assumption that the undertaking or the governing body member, contrary to a provision of this Act or an enforceable individual-case ruling based on this Act, impairs, endangers, or delays the clarification of facts relevant to a decision for the purposes of supervision under this Act, by 1. not providing particulars, or not providing them correctly, completely, or in time, or 2. not submitting documents, or not submitting them correctly, completely, or in time. The searches must be ordered by the judge, except where danger is imminent. Where danger is imminent, the Federal Institute's operational command may make the order, unless only an insignificant delay is to be expected. Searches of premises serving as a dwelling must always be ordered by the judge. The fundamental right to the inviolability of the home (Article 13(1) of the Basic Law) is restricted to this extent. The Local Court in whose district the premises are located has jurisdiction. An appeal (Beschwerde) is admissible against the judicial decision; sections 306 to 310 and 311a of the Code of Criminal Procedure apply correspondingly. A record must be made of the search. It must contain the responsible office, the reason, time, and place of the search and its result, and, where no judicial order was issued, also the facts that gave rise to the assumption of imminent danger.
(6) The employees of the supervisory authority may seize objects that may be significant as evidence for establishing the facts. Where the objects are no longer needed for the administrative procedure, they are returned to the last person who had custody of them.
(7) The parties concerned must tolerate measures under subsection (1), first sentence, points 1 to 3, second sentence, and under subsections (2), (4), (5), and (6). The fundamental right to the inviolability of the home (Article 13(1) of the Basic Law) is restricted to this extent.